JETT, Executor of Bernard,

againft

BERNARD.

ILLIAM BERNARD, among other bequefts to his wife, devifed her a legacy, in the following words, " Item, out of my crops "of tobacco and tobacco debts, I devife to my "wife forty thoufand weight, to enable her to "purchase a carriage, and to fupply her with fuch "neceffaries as fhe may be in want of." And among other bequefts, to his fon Richard Bernard he devifed him a legacy in thefe words: "I also give to him, to fupply himfelf with neceffaries, "twenty thousand pounds of tobacco, out of my

crops and outstanding tobacco debts." Of which will he appointed his fon Richard one of the executors, who alone qualified. After the deaths of the faid Richard Bernard, and of the teftators faid widow, her fon and adminiftrator brought a fuit against Jett as executor of the faid Richard Bernard, and among other things, claimed the balance of the 40,000 weight of tobacco devised to her as aforefaid. Upon a reference to the commiffioner it appeared that there was not fund enough to pay both the above legacies, but he, being of opinion that the widow was firft entitled, and that the deficiency arofe from the misconduct of the executor, charged the defendant with the balance of the faid legacy and intereft. The defendant excepted to the report; and the Court of Chancery being of opi-* nion that if the fund was not fufficient to pay both the legacies, and the deficiency was not occafioned by the default of the executor, the legacies ought to abate proportionally, directed a jury to inquire whether the deficiency was occafioned by negligence or other default of the executor. There being other parts of the decree with which Jett was diffatished, he appealed to this court.

A widow

taking a legacy under the bate in proportion with the other legatees.

will, fhall a

Jett

Bernard.

WICKHAM and WARDEN for the appellee, contra. The legacy to Mrs. Bernard ought not to abate; becaufe fhe receives it in lieu of her third part under the act of Affembly. In the cafe of Burridge vs Bradyl. Wms. 127, it was exprefsly held that where the wife releafed her dower for the legacy, it should not abate; and the reafon is the fame, where the releafe is wrought by operation of law. Fer fe cannot have the legacy and her thirds too: and the taking the legacy deftroys her claim to a third part of the eitate, under the act of affembly.

CALL for the appellant. The legacies to Mrs. Bernard and Richard Bernard ought to be paid proportionabiy, out of the tobacco which has been collected; becaufe the refidue of the debts being doubtful originally, the fund is likely to prove defective for payment of both; and therefore jultice requires that the legacies fhould abate in proporti on. The cafe of Burridge vs. Bradyl is a tingle cafe; it was decidel on the fpecial circumftances; and does not eft blifh the general principle contended for: Belides it was, probably, a cafe of compa Tion, and therefore it would be too much to found a rule of property on it; efpecially as, in that cafe, there was an exprefs releafe of the dower for the legacy, which was a beneficial confideration paid for it. But here there was no fuch confideration; becaufe if he had taken her thirds, they would have been fubject to the fane abatement; and therefore the loft nothing by taking the legacy, for it is only making the batement upon the legacy, inftead of making it on the diftributive hare. Bit what is decifive, in the prefent cafe, is, that the teftator fhew. ed the fame defire for the payment of both legacies. Fer they are both given in the fame language: In both it is to buy fuch necessaries as the legatee may stand in need of: which difcovers an equal defire that both fhould be fatisfied, and repels the idea of a preference in the payment.

Cur adv. vult.

LYONS Judge-Delivered the refolution of the Court, that there was no error in the decree; and, confequently, that it was to be affirmed.

Decree affirmed.

Jett

Bernard.

A

WASHINGTGN,
Against

SMITH.

FORTHCOMING bond was taken without any fecurity, and the District Court gave judgment on it in favor of the plaintiff upon a motion .From this judgment Washington appealed to

this Court.

A forthcoming bond given by the defendant only,

without any fecurity, will support a motion, & judgment will be

rendered on it, in favour of the plaintiff.

FITZHUGH, against FOOTE.

R

ICHARD FOOTE and William Haywood Foote filed a bill in the High Court of Chancery, against John Thornton Fitzhugh and Mar. garet his wife, ftating, that Kichard Foote the father of the plaintiffs died in 1778, leaving the plaintiffs infants of very tender years; and that the defendant Margaret, who was the teftator's wife, alone qualified as executrix of his will: That in 1780, fhe intermarried with the defendant John Thornton Fitzhugh; and, in September of that year, an order, for the alignment of her dow. er and thirds, was made by the county court of Prince William; out that no fuit for that purpofe was inftituted, nor guardian appointed the plain

When in

dividing laves

it cannot be conveniently done without

feparating in

fant children from their

mothers, com

penfation may

be made in money.

Wife not entitled to money arifing from land fold by the hufband during his life time

in lieu of her

dower.

tiffs; and that their grandfather by the mother's fide, did not, as the defendants pretend, pay attention to it on behalf of the plaintiffs; he being more attached to Fitzhugh than to their father: That in carrying the order of the county court into effect, the most valuable part of the lands (having all the improvements on it) were affigned for dower; which was not laid off by the county furveyor, but by Moffett the friend of the defendant J. T. Fitzhugh; and that more than a third part was affigned: That the allotment of the flaves and perfonal eftates was alfo unfair and unequal, to the prejudice of the plaintiffs. The bill therefore prays that thofe aflignments may be fet afide, and others made; and that the plaintiffs may have general relief.

The anfwer ftates, That the grandfather was appointed executor, and although he never qualified, yet he never renounced, but managed the eftate during the defendant Margarets widowhood; and applied to the county court for the order of affignment: That the dower and thirds were laid off in his prefence, without the interference of the defendant, who did not procure Moffett to make the Survey; for it was the grandfather who did it; and he was influenced therein as well becaufe great part of the land lay in Fauquier, where Moffet lived, as because of the great age of the furveyor of Prince William: That the furvey was fair, and not more than a third part of the lands were affigned for dower; nor was the part affigned fo fertile as the refidue: That the allotment of the flaves was not unequal at the time, although from fubfequent caufes, as deaths, births, &c. it may have become fo: That the order of the county court was agreeable to the ufage of the country; and the affignments, under it, fairly, equally, and impartially made.

Several witneffes were examined as to the value of the affignments; and the High Court of Chance

ry appointed commiffioners to view and examine the dower lands, and to correct the excefs, if any; as alfo to examine into the allotment of the flaves, and, if the widow received more, than her due sbare, to allot her one equal third part of the whole stock of surviving slaves; and in both cafes to eftimate the compenfation which ought to be made the plaintiffs, for the excess.

The commiffioners reported that there was an excefs, as to quantity, in the dower lands; which they had corrected: that all the valuable improvements were upon thofe lands; and that they had left them ftill attached to the new affignment; but had diminished the quantity: That they had affeffed a yearly rent, as well for the original excefs in quantity, as for the additional furplus, arifing from the reduction under the

new.

affignment: That the excefs of quantity, under the first affignment, did not proceed from the mifconduct of Fitzhugh, or the grandfather, but from an accidental defect in the furvey; and that there was an excess of £30: 10 in the value of the dowér flaves.

The Court of Chancery confirmed the correction in the dower lands; and made the following decree with regard to the flaves.

"That the court doubting, at leaft, the power "thereof to compel the fons of Richard Foote to "accept a compenfation for excefs in value of the "flaves affigned to Margaret Fitzhugh for dower, "whereas a divifion of the flock of flaves them"felves, if it be not unequal, is indubitably fanctifi"ed by law, doth, after hearing counfel, adjudge, "order and decree, that the faid flaves fhall be "divided into three equal parts; that of thofe "parts be alloted, one to John Thornton Fitz"hugh and Margaret his wife, and the other to "the fons Richard Foote and William Haywood "Foote, and that John Fitzhugh and Margaret